Clearly, those who wrote and ratified the 23rd Amendment envisioned the District as having a population of a certain size. In fact, the amendment compares the District to a state, granting it the number of presidential electors it would be entitled to “if it were a State,” which it is not. But under this bill, the “District” would become a tiny enclave where only a small number of voters would live, including the presidential family. But those voters, still empowered to select the three electors presently allotted by the amendment, would have vastly more powerful or effective votes than their fellow citizens across the country. Yet Congress can do nothing about that if the amendment is in place, for the amendment authorizes Congress to direct the manner in which the District appoints electors; it does not allow Congress to eliminate the District’s power to appoint those electors or to take away the District voters’ constitutional rights by mere statute.
Recognizing that, apparently, this bill’s drafters offer a convoluted way to preserve those rights, if not that power. Thus, Sec. 221 purports to require each state, including the new 51st state, to permit individuals residing in the reduced seat of government (i.e., the tiny District of Columbia) to vote in federal elections in their state of most recent domicile. Sec. 221(b)(1) expresses “the sense of Congress” that States should “waive registration requirements for absent Capital voters who, by reason of residence in the Capital, do not have an opportunity to register.” And Sec. 223 purports to strike “the District of Columbia” from the definition of a state for the purpose of choosing electors, effective upon admittance to the Union of the new 51st state.
If passed standing alone, Sec. 223 would plainly be unconstitutional. In the context of this bill, it remains so. The repeal is not sensibly pegged to the repeal of the 23rd Amendment or even to the last (51st) state’s adoption of absentee procedures. Congress presumes in this section that it can undo what it took a constitutional amendment to do. If all of this would do the job, why the need for Sec. 224, appropriately titled, “Expedited procedures for consideration of constitutional amendment repealing 23rd Amendment.”
The word “expedited” (to say nothing of the procedures that follow) speaks volumes about what is going on here. This bill cannot stand unless the 23rd Amendment is repealed by the provisions of Article V of the Constitution. But the chances of that are exceedingly small. As we saw when an amendment to afford greater representation for the District was put before the nation in 1978, only 16 states had signed on by the time the allotted period for ratification had concluded in 1985. Outside the Beltway there is little support for even that kind of change. I submit that so radical a change as is contemplated by this bill—reducing the nation’s capital to this tiny enclave—will meet with even less support. In fact, as a July 15, 2019 Gallup poll showed, even among Democrats, support for DC Statehood stood at only 39 percent, with 51 percent opposed. Among Americans generally, 29 percent support DC Statehood, 64 percent oppose it.7 More recently, in fact due out today (citation not available at this writing), A Scott Rasmussen national survey of 1,200 registered voters conducted March 18–20, 2021, asked two questions: “How closely have you followed recent news stories about a proposal to make Washington, D.C. a separate state?” and “Would you favor or oppose making Washington, D.C. a separate state?” Just 19% of registered voters say they are following news on the topic “Very Closely.” Overall, 35% at least somewhat favor the idea, 41% are at least somewhat opposed, and 24% are not sure. Those totals include 17% who Strongly Favor the idea and 28% who Strongly Oppose it. There is some awareness of the partisan implications. That is reflected in the fact 52% of Democrats tend to support the idea while 61% of Republicans oppose it.
Let me conclude with this. If no one thought, in 1961, that presidential electors could be chosen by citizens of the District other than through a constitutional amendment, and if no one thought, in 1978, that greater representation for the District could be achieved other than through a constitutional amendment, what has changed such that today some believe that we can change the District that is provided for by the Constitution into a state other than through a constitutional amendment? This would amount to rewriting the Constitution by mere statute. If we want to change our constitutional arrangements, the Constitution provides us a way to do it, through Article V.